| People v Haynes |
| 2015 NY Slip Op 08278 [133 AD3d 1238] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dardrequez Haynes, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Anthony M. Rossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered September 10, 2013. The judgment convicted defendant, upon a nonjuryverdict, of assault in the second degree (two counts), criminal possession of a weapon inthe third degree and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him after a nonjury trial of,inter alia, two counts of assault in the second degree (Penal Law § 120.05[2]), defendant contends that the evidence is legally insufficient to support the assaultconvictions because the People did not adequately prove the element of intent and failedto disprove his defense of justification. By failing to move for a trial order of dismissal" 'specifically directed' " at the purported legal insufficiency of theevidence, however, defendant failed to preserve that contention for our review (People v Hawkins, 11 NY3d484, 492 [2008], quoting People v Gray, 86 NY2d 10, 19 [1995]).
Defendant further contends that the verdict is against the weight of the evidence onlyto the extent that the People failed to disprove his justification defense beyond areasonable doubt. We reject that contention. The use of a "knife to inflict injury uponone's victim constitutes the use of deadly physical force" (People v Davis, 118AD2d 206, 209 [1986], lv denied 68 NY2d 768 [1986]; see People v Jones, 24 AD3d815, 816 [2005], lv denied 6 NY3d 777 [2006]), and the use of deadlyphysical force is justifiable only when "[t]he actor reasonably believes that such otherperson is using or about to use deadly physical force" (Penal Law § 35.15[2] [a]). Although one of the victims had a pocket knife secreted on his person, there isno dispute that neither victim displayed a weapon or dangerous instrument before beingcut by defendant with a knife, and the evidence at trial established that the victims werenot using or attempting to use deadly physical force against defendant at the time. Thus,viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that Supreme Court's rejection of thejustification defense is not against the weight of the evidence (see People v Goley, 113 AD3d1083, 1084 [2014], citing People v Romero, 7 NY3d 633, 643-644 [2006]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Scudder,P.J., Centra, Carni, Whalen and DeJoseph, JJ.